Waitangi Tribunal’s case against Children’s Minister heard by Court of Appeal

The Court of Appeal is considering whether the High Court was right to overturn a Waitangi Tribunal summons of the Minister of Children, Karen Chhour. Photo / Mark Mitchell

The threshold for calling a sitting minister to appear before an inquiry hasn’t been met, Solicitor General Una Jagose KC told the Court of Appeal today.

Waitangi Tribunal claimants include two iwi - Ngāti Pikiao and Waikato-Tainui - as well as the Māori Women’s Welfare League. They lodged an appeal following last week’s High Court decision not to require Children’s Minister Karen Chhour to appear before the tribunal, to answer questions about plans to repeal section 7AA of the Oranga Tamariki Act.

That section requires the agency to have regard to its Treaty obligations. Critics argue repealing it will be detrimental to children.

Two new pieces of information have come to light since last week’s hearing: a letter from Chhour to the tribunal and the release of its interim report on the impact of the repeal.

The Crown said the Minister’s letter answers the questions that were put to her in the summons from the tribunal. The claimants said it didn’t.

Jagose said the tribunal’s interim report was a detailed and complete record of the material before it and it had made hard-hitting and evaluative findings. She said it had been able to do this because the Crown had been extraordinarily open with the material it had provided to the tribunal.

She said the tribunal had released its report early not because of lack of evidence but because it feared it was running out of time. The tribunal’s jurisdiction ends once a bill is introduced to Parliament. The Government has indicated it may put the Bill before Parliament in the coming weeks.

Lawyer Matthew Smith, representing Ngati Pikiao, told the Court of Appeal that the High Court had erred by treating comity, the principle of mutual respect and restraint between branches of government, as a hard legal concept, rather than a value or principle.

“Comity, if it’s understood, is restraint. We have a pyramid of constitutional concepts. At the top is the rule of law and under that is the separation of powers. It’s important that any deployment of constraint is not inconsistent with the rule of law and the separation of powers.”

Secondly, because Parliament had deferred its decision-making power to the Waitangi Tribunal, it was not for a judicial review court to exercise decision-making powers, but only to review the legality of the decisions that have been made, he said.

But Jagose said the issue was much narrower than that and the case was about the threshold for a sitting minister to appear before an inquiry.

The appeal is expected to conclude tomorrow.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media advisor at the Ministry of Justice.